Act/Law wise: Judgment of Supreme Court of Bangladesh


Arbitration Act, 1940
Section/Order/Article/Rule/Regulation Head Note
Section 1 (2)

The ex-parte arbitration proceeding.
Non-issuance of notice by the Arbitrator is a legal misconduct on the part of the Arbitrator which is very much patent in law and vitiates the Award.Even in case of due notice for appointment of Arbitrator and the party failure to appoint Arbitrator, the Arbitrator could not have proceeded ex-parte without express notice upon the other side disclosing the intention to do so.
Govt.of Bangladesh -Vs.- MOL Enterprise INC. 6 ALR (AD) 2015 (2) 33 ....View Full Judgment

Section 3

Section-3 of the First Schedule
Section 3 of the Arbitration Act provides that unless a different intention is expressed in the arbitration agreement it shall be deemed to include the provisions set out in the First Schedule which enacts that the arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. Thus where the arbitration agreement did not provide for the time within which Arbitrators shall make their award but made the award beyond four months from the date of entering on the reference the question arises as to whether the award before such period without any extension of time is valid or not.
M. Ahmed Rashid & Ors Vs. M. Shafi & Ors 15 BLT (AD)88 ....View Full Judgment

Section 5

Revocation of arbitral authority— Code of Civil Procedure 1908- Order 39 rule 1 and 2 and section 151- Scope of temporary injunction against arbitration proceedings—
In an Arbitration case under section 5 of the Arbitration Act, 1940 seeking revocation of arbitral authority of the tribunal and during the pendency of the case the petitioner-respondent sought for temporary injunction under Order 39 rule 1 and 2 read with section 151 C.P.C. for staying further proceedings of the I.C.C. Arbitration case which was rejected by the Arbitration court but in an appeal taken by the petitioner-respondent the High Court Division granted adinterim injunction staying further proceeding of the I.C.C. Arbitration case for 8 weeks which was ultimately modified in the form of restraining the petitioner-respondent from proceeding with the I.C.C. Arbitration case No.7934/C.K. Since the High Court Division directed the Subordinate judge to dispose of the Arbitration case positively by a certain date without, fail, the Appellate Division declined to interfere with the said order in the interest of justice.
Saipem S.P.A. Vs. Bangladesh Oil Gas and Mineral Corporation (Pelro-Bangla)-5 MLR (2000) (AD) 245. ....View Full Judgment

Section 8

Respondent praying for appointment of an Arbitrator by the court on the ground that in respect of supply of certain quantity of coal of specf1c size and quality by a contract, dispute arose between the respondent and the petitioner but in spite of repeated request and a formal notice to appoint an Arbitrator in terms of the contract, the petitioner failed to do so and so the application to the court—section 8 of the Arbitration Act, 1940 was not at all attracted as contended by the learned petitioners counsel.
Held: We find that the Arbitrator has already entered on the reference and has started issuing notices to the parties. In that view of the matter we are not inclined to entertain this technical objection at this stage. [Para- 12]
Coal Controller Vs. Venture Industries Ltd. 1 BLT (AD)-50 ....View Full Judgment

Section 8(2)

Jurisdiction of Court to appoint umpire
Jurisdiction of the court to make an appointment under sub-section (2) arises only when (he parties have failed to come to an agreement in respect of appointment of a new arbitrator or umpire within the time of 15 days allowed for so doing.
Government of Bangladesh Vs. M/S. Samir & Co- (1976) 28 DLR (SC) 21. ....View Full Judgment

Section 8(2)

While passing an award the Arbitration must consider the evidence produced before him otherwise it will not be an award at all– The respondent has not prayed for interest but the High Court Division has given 16% interest to the contractor-respondent till realisation of award passed by the Arbitrator.
Giving such interest to the respondent without any claim by it is nothing but a gratuitous relief which is not permitted by law and even no reason was assigned therefor. We do not approve of giving such interest without any prayer made by the respondent.
While passing an award the Arbitration must consider the evidence produced before him otherwise it will not be an award at all. This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. ...Ministry of Defence, Bangladesh =VS= M/S. Aminul Haq, (Civil), 2020 [9 LM (AD) 106] ....View Full Judgment

Section 9(b)

Appointment of Arbitrator-notice of such appointment upon other party for the purpose is imperative because only upon such notice being given the right of each party to appoint Arbitrator arises but the right to appoint the sole Arbitrator arises only if there is failure or default on the part of other party to appoint his own Arbitrator within the statutory period as required under law and failure to give such notice renders very appointment of Arbitrator itself is illegal and imperative. In the facts, circumstances and materials on record it appears that the award made by the sole Arbitrator is a nullity and without jurisdiction under the provisions of the Arbitration Act, 1940.
Govt.of Bangladesh and others-Vs.-MOL Enterprise INC. 4 ALR (AD) 2014 (2) 29 ....View Full Judgment

Section 14(2)

The Arbitration Act 1940
Section 14(2) read with
The Limitation Act
Article 181
The award to be filed in Court should be made within 3(three) years from the date when right to apply accrues– Knowledge of the filing of the award acquired otherwise than in the way prescribed by section 14(2) should be distinguished from the service of notice under section 14(2) of the Act, and that if no notice envisaged by that section is served, direction to cause the award to be filed in Court should be made within 3(three) years from the date when right to apply accrues according to the residuary provision of Article 181 of the Limitation Act. .....Gomati Water Development Division, Comilla=VS=Md. Shah Alam, (Civil), 2018 (1) [4 LM (AD) 121] ....View Full Judgment

Section 14

The partition award which was made on 16.7.48 was not made a rule of the court and as such it is not valid and legal as contended by the learned petitioner’s Advocate.
Held : With regard to the award it may be stated that the award was made 30 years back — from the materials on record it is abundantly clear that the award which was made between the parties 30 years back was acted upon and in that view of the matter the jointness of the properties and common business cannot be denied. The parties have voluntarily acted on the basis of the award 30 years back. Further in view of the fact that the plaintiffs are in part possession of the suit properties in their own right, the submission of the learned Advocate that the award is not legal and valid cannot be accepted. [Para-71]
M.F. Ban & Ors. Vs. A. Razzaq & Ors. 4BLT (AD)-151 ....View Full Judgment

Section 16

Setting aside of an award by the court does not by itself supersede the arbitral reference—
Section 16 leaves it to the discretion of the court while setting aside an award to decide as to if the arbitral reference will be superseded thereby or not. Unless the court expressly decides so to do, the setting aside of an award does not by itself construct any such supersesion and as such the arbitral reference shall continue notwithstanding the setting aside of the award.
M/s. A. Z. Co. Karachi Vs. M/s Maula Boksha- (1965) 17 DLR (SC) 404. ....View Full Judgment

Section 17

If the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void, it would be open to the Court to con-sider this patent defect in the award suo motu and when the Courts act suo motu, no question of limitation can arise.
The Project Director, P.L. and another. -Vs.- Latiff Company Ltd. (Civil) 14 ALR (AD) 45-49 ....View Full Judgment

Section 20

Scope of challenge when parties submitted to the jurisdiction—
After the appellant, had submitted to the jurisdiction of the Court in an arbitration proceeding arising out of contractual disputes and the Arbitrators appointed by the Court from the respective panel of the parties submitted, the award which was made rule of the Court, subsequently the award so made cannot the challenged on the ground of non-maintainability of the contract becoming not valid and enforceable. Award may be set aside only on the ground of misconduct on the part of the arbitrators.
Bangladesh Telegraph and Telephone Board Vs. Lithi Enterprises Lld- 3, MLR (1998) (AD) 275. ....View Full Judgment

Section-23, 30

The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. .....Md. Kabir & others =VS= Dreebajati Hore & others, (Civil), 2016-[1 LM (AD) 332] ....View Full Judgment

Section 28

Explanation 1— Submission to foreign jurisdiction for arbitration—
Explanation 1 of section 28 of the Contract Act provides for submission of parties to the contract to foreign jurisdiction in matter of resolution of dispute arising out of contractual obligation by arbitration. Since no state can live in isolation and when reciprocal arrangements in commercial deals are recognised, such provision relating to submission to foreign jurisdiction is not opposed to Stale Sovereignty and inconsistent with independant State Policy.
Bangladesh Air Service (Put.) Lid. Vs. British Air Ways P. L. C- 2, MLR (1997) (AD) 169. ....View Full Judgment

Section 29

Under this provision if award is brought to the Court then the Court in its discretion may or may not grant interest on the award amount and it is not the jurisdiction or power of the Arbitration/ Umpire.The jurisdiction or power of Arbitrator/Umpire, in the absence of any agreement, to grant future interest in the awarded amount till realisation thereof is not within the power or jurisdiction of the arbitrator/Umpire but such power of granting interest on the awarded amount or part thereof till realisation could be awarded as per provision of section 29 of the Arbitration Act which is within the jurisdiction of the Court or in other words, when the Award is brought to the Court then the Court in its discretion may or may not grant interest on the award amount or part thereof as decreed till realisation.
Janab Md. Asalat Zaman -Vs.- The State 3 ALR(2014)(1)(AD) 205 ....View Full Judgment

Sections 30 and 33

During pendency of the order of stay any further order is clearly a misconduct.
The Appellate Division observes that it is patently clear that the order appointing the learned Arbitrator was stayed by the court making the appointment and the fact of the stay order and the challenge against the appointment before the High Court Division was brought to the notice of the learned Arbitrator. It appears that the High Court Division has overlooked this aspect of the case. It is also apparent that the learned Arbitrator acted beyond his jurisdiction when the order appointing him as Arbitrator was stayed. These facts having been brought to his notice in the application for adjournment, it was clearly misconduct on the part of the learned Arbitrator to proceed with hearing the arbitration and making an award during the pendency of the order of stay.
Secretary, BADC -Vs.- M/S. Greeners Engineering Ltd. 5 ALR (AD)2015(1) 131 ....View Full Judgment

Section 31(1)

Jurisdiction of Court for filing award—
The award shall be filed in a court for making the award rule of the court which has the jurisdiction to entertain a suit in respect of the subject matter of the reference as defined under section 2(c) of the Arbitration Act.
Abdul Karim Dobash and others Vs. Abdnr Razzak Dobash and others- 4, MLR (1999) (AD) 133. ....View Full Judgment

Sections 32 and 33

No suit is maintainable without recourse to section 33—
A clear bar is put under section 32 of the Arbitration Act, 1940 against maintain- ability of a suit challenging arbitral agreement or for setting aside an award without having recourse by way of application under section 33 of the Act.
Badsha Mia and others Vs. Abdul Kader and others. 5 MLR(2000)(AD) 66. ....View Full Judgment

Section 33

read with
Limitation Act(IX of 1908)
Section 158
The pleas that the application for setting aside of the application under Section 30 of the Arbitration Act, 1940 having been filed beyond 30 days of the service of notice, the award can not be set aside and appeal is liable to be dismissed are of no substance and such plea is a pleas are dying similar in the deep sea trying to save his life catching even a straw. In view of the finding on materials that the award is void abinitio and as such a nullity, the question of furnishing the statutory deposit as the pre-condition for application for setting aside of the award pursuant to the proviso to Section 33 of the Arbitration Act, 1940 for setting aside the award is a myth and such requirement of law is not applicable in the peculiar facts and circumstances of this case. Govt.of Bangladesh -Vs.- MOL Enterprise INC. 6 ALR (AD) 2015 (2)33 ....View Full Judgment

Section 34

Jurisdiction of the Civil Court —The Appellant filed Money Suit against the respondent No.1-6 —the respondent took steps on several occasions to adjourn the case in the name of filing Written statement
—Held; when the arbitration proceedings commences the parties should be ready and willing to do all things necessary to the proper conduct of the arbitration. But as it appears before ICC Paris the respondent Nos. 1 and 2, expressing their unwilling to continue with the Arbitration proceeding. backed out from the arbitration proceedings stating that ‘they will not bear any further expenses in the arbitration proceeding. In view of above, the arbitration proceeding could not commence at Dhaka —While staying the proceedings of the trial court, did not at all take into consideration the two basic lawful aspects of the case i.e. the respondent. Nos.3-6 took steps on several occasions to adjourn the case in the name of filing written statement and that the respondent Nos. 1 and 2 backed out from the arbitration proceedings which was pending before the ICC Paris. So the judgment and order dated 15.5.2000 passed by the High Court Division in staying the suit cannot be sustained.
Popular Biscuit Ltd. Vs. Beximco Bremer Export Contor Brand, Repprecht Gmbh & Ors 15 BLT (AD)282 ....View Full Judgment

Section 34

Provides for stay of proceedings of suit for arbitral reference—
Defendants in a suit before taking, any steps may seek for staying further proceedings of the suit and referring the dispute for resolution through arbitration. After certain steps are taken by the defendants upon submission to the jurisdiction of the Civil Court, further proceedings of the suit can not be stayed as contemplated under section 34 of the Arbitration Act, 1940. Popular Biscuit Limited Vs. Biximco Bremer Export Contor Brand and others 11 MLR (2006) (AD) 366. ....View Full Judgment

Section 39

It is well settled that in an appeal under section 39 of the Arbitration Act the decision of the arbitrator cannot be reviewed and the appellate Court cannot construct an award for the arbitrator. The appellate Court is only to see whether the award can be challenged on the ground of excess of jurisdiction or income, petence or misconduct on the part of the arbitrator.
Bangladesh vs. National Construction And Consult Ltd. 17BLD (AD) 308. ....View Full Judgment

Rule 4

Rule—4 of the Second Schedule Read with Section-41
In the matter of a company, it is advisable that the court should not interfere by granting injunction where in the internal management and functioning of the company may be affected. (Para-4)
Mr. Mainul Hosein Vs. Mr. Anwar Hossain 4 BLT (AD)-76. ....View Full Judgment